ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

TERRY VIENNA

APPELLANT

V.

BARBARA VIENNA

APPELLEE

CA 03-746

FEBRUARY 11, 2004

APPEAL FROM THE ST. FRANCIS

COUNTY CIRCUIT COURT

[NO. E99-396-1]

HONORABLE BENTLEY EARL

STORY, JUDGE

REVERSED AND REMANDED

John B. Robbins, Judge

Appellant Terry Vienna and appellee Barbara Vienna were married on December 31, 1994. Ms. Vienna filed a complaint for divorce on September 2, 1999, and an agreed divorce decree was entered on November 2, 1999. The decree divided some of the parties' personal property, but also provided, "That all other issues involved in this litigation, including marital and non-marital real and personal property issues, support issues, assignment of marital debts, attorney's fees and any and all other issues involved in this litigation are reserved for further determination by this Court."

A trial on the property issues was held on May 10, 2000. On December 12, 2000, the trial court issued a letter opinion that reflected its decision regarding the division of the parties' marital property. The trial court found that Ms. Vienna owned marital property consisting of a retirement account and AFLAC stock, and that Mr. Vienna owned marital property consisting of two Salomon Smith Barney accounts and a Putnam account. The December 12, 2000, letter opinion found that each party was entitled to one-half of the marital assets based on their value at the time of the letter opinion, as opposed to their value at the time the divorce decree was entered. The trial court instructed Ms. Vienna's attorney to prepare a precedent to this effect.

The trial court filed another letter opinion on January 30, 2001. In that letter, the trial court advised Mr. Vienna that if he could produce evidence of the value of the Putnam account as of the date of the parties' marriage, it would review the matter and exclude from marital property the value of the account at that time. The trial court further indicated that Ms. Vienna's counsel must have information on the Salomon Smith Barney accounts so he could draft the decree, and advised that Mr. Vienna must provide that information within seven days of the letter.

On June 27, 2001, the trial court issued a third letter opinion. The letter stated that "the remaining issue is at what point in time should the court determine to be the evaluation date for the publicly held stock owned by the parties." The letter further provided:

[Appellee's attorney] has sent to me two proposed Supplemental Decree precedents. They are identical except for the valuation date of the various stocks. One provides the stock values as of the date of divorce, that being November 2, 1999; and the other provides the stock values as of the date the property was divided by the court via the court's letter opinion, that being December 12, 2000.

It is my opinion that either precedent is appropriate with one addition. The precedent must state that any increases or decreases in stock values must be enjoyed or suffered by both parties, as the case may be, on an equal basis. The rationale or basis for this opinion is that all of the stock is publicly held stock. Neither party can manipulate the value of the stock. Neither, except for a sale of the stock, can affect the value of the stock in any way. In this case, neither has sold any of the stock to my knowledge. As of the date of the divorce (November 2, 1999) or as of the date of the property division (December 12, 2000), if the stock increased, each party is entitled to share in the increase because ½ of the marital value of the stock is his or hers; if the stock decreased, each party must suffer the decrease because ½ of the marital value of the stock is his or hers. This is true because as of the date of divorce, each party was entitled to receive ½ of the marital value of the stock. The fact that one party held the marital property in his or her name solely is of no consequence; the other party was still entitled to his or her statutory ½ share of the marital value of the stock. The court defines the term "marital value" as the value of the stock created during the marriage.

. . . .

It is my opinion that either precedent must provide that each will share in the increases or decreases in the marital value of the stock. An accounting and recalculation of the marital value since either date will accomplish that.

[Appellee's attorney] is correct in his argument that the value of the stock should be as of the date of divorce (November 2, 1999); therefore, the precedent which speaks in those terms should be used.

I ask that [appellee's attorney] add language to the effect in paragraph 7 of his proposed decree as follows: "INVESTMENTS. These investments will be valued as of the date of divorce, November 2, 1999, plus any increases or decreases since that date which may have occurred."

If [appellee's attorney] will send me the new draft, I will sign it.

On November 21, 2001, the trial court entered a "supplemental decree." The supplemental decree issued the following order:

The Court has issued three separate Memorandum Opinions to the attorneys of record following [a] hearing of this matter on May 10, 2000, containing its finding of fact and conclusions of law, said Memorandum Opinions being dated December 12, 2000, January 29, 2001 and June 27, 2001.

Said Memorandum Opinions are attached hereto as Exhibits "A," "B," and "C," respectively, and each is made a part hereof as though set out herein word for word.

On May 29, 2002, Ms. Vienna filed a petition asserting that "both parties are desirous of concluding this matter on some type of monetary basis," and that "the parties have been unable to agree upon a settlement of this matter." Ms. Vienna attached to her petition a document stating her position as to the final monetary settlement, which included values of the undivided marital assets as of the date the divorce decree was entered. Mr. Vienna filed an answer and counter-petition, contesting Ms. Vienna's method of calculation and proposed division.

A hearing on the petition and counter-petition was held on July 18, 2002. No testimony was taken at the hearing, and the trial court heard arguments by the parties' respective attorneys.

On October 15, 2002, the trial court issued a letter opinion stating:

I have [appellee's counsel's] letter of July 31, 2002, and [appellant's counsel's] letter of August 5, 2002. After consideration of this court's prior letter opinions and the letters of the attorneys, it is my conclusion that Arkansas law requires that the division of all property be effective on the date of the divorce.

I attempted to fashion a method of calculation which would allow each party to retain the stock for which each has the most connection. This would require set-offs and payments for one to the other. The problem arose in an attempt to go beyond the set-offs and payments. I am now convinced that this was the inappropriate approach.

The stock owned by the parties will be valued as of the date of divorce. Calculations will be made accordingly.

This is the court's final ruling in this matter.

Then, on December 2, 2002, the trial court entered a "supplemental decree" that attached the letter opinions of December 12, 2000, June 27, 2001, and October 15, 2002. The supplemental decree provided that these opinions be made a part of the order as if set out word for word. The decree ordered the marital investments to be valued as of the date of the divorce, and divided the property accordingly.

Mr. Vienna now appeals from the supplemental decree entered December 2, 2002. For reversal, he argues that the trial court lacked jurisdiction to vacate or modify the supplemental decree entered November 21, 2001. Mr. Vienna cites Ark. R. Civ. P. 60, which provides in pertinent part:

(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.

(b) Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of any appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:

(1) By granting a new trial where the grounds therefor were discovered after the expiration of ninety (90) days after the filing of the judgment, or, where the ground is newly discovered evidence which the moving party could not have discovered in time to file a motion under Rule 59(b), upon a motion for new trial filed with the clerk of the court not later than one year after discovery of the grounds or one year after the judgment was filed with the clerk of the court, whichever is the earlier, provided, notice of said motion has been served within the time limitations for filing the motion.

(2) By a new trial granted in proceedings against defendants constructively summoned, and who did not appeal, upon a motion filed within two years after the filing of the judgment with the clerk of the court, or within one year after a certified copy of the judgment has been served upon the defendant, whichever shall be the earlier, upon security for costs being given; provided notice of the filing of said motion has been served upon the adverse party within the time limitations for filing the motion.

(3) For misprisions of the clerk.

(4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.

(5) For erroneous proceedings against an infant or person of unsound mind where the condition of such defendant does not appear in the record, nor the error in the proceedings.

(6) For the death of one of the parties before the judgment in the action.

(7) For errors in a judgment shown by an infant within twelve (12) months after reaching the age of eighteen (18) years, upon a showing of cause.

Mr. Vienna argues that because more than ninety days had elapsed from the time the November 21, 2001, decree was entered, and because none of the exceptions to the ninety-day limitation apply, the trial court was without authority to enter the December 2, 2002, decree.

We agree with the appellant's argument. After a ninety-day lapse of time, a court has no authority to modify an order absent a showing of one of the enumerated exceptions provided in Rule 60. Slusher v. Slusher, 73 Ark. App. 303, 43 S.W.3d 189 (2001). In this case, a period of ninety days expired and none of the exceptions are applicable. Therefore, we must conclude that the trial court lacked jurisdiction pursuant to Rule 60 to amend the first supplemental decree.

The appellee argues that the trial court had the authority to enter the December 2, 2002, decree because the issues resolved by that decree were explicitly reserved by the divorce decree and left open pending a final determination. The appellee cites Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171 (1986), where we held that Rule 60 is inapplicable where the court has expressly retained jurisdiction to make other orders regarding the decree.

We do not agree with the appellee's assertion that the trial court retained jurisdiction over the issue of when the marital property is valued for purposes of division between the parties. The divorce decree reserved the issue of division of marital property. However, the supplemental decree entered November 21, 2001, incorporated the previous three letter opinions and purported to express the trial court's resolution of the issue: the property was to be distributed in accordance with its value taking into account increases or decreases since the divorce. The issue was thus resolved by the November 21, 2001, decree, and was no longer reserved for further consideration.

The appellee also argues that we should affirm this case because Mr. Vienna is raising his argument for the first time on appeal. However, our supreme court has held that subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by the appellant court. See Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001). Thus, it is immaterial that Mr. Vienna failed to raise the issue of subject-matter jurisdiction to the trial court.

Pursuant to Rule 60, the trial court did not have jurisdiction to modify the November 21, 2001, supplemental decree. Because the December 2, 2002, decree that modified that prior decree was void for lack of jurisdiction, we reverse and remand with instructions for the trial court to vacate its December 2, 2002, decree.

Reversed and remanded.

Baker and Roaf, JJ., agree.